CLIENT ALERT MEMORANDUM
March 25, 2003
To: All Police Chiefs and Sheriffs
From: Martin J. Mayer & Dean J. Pucci
PAROLEE SEARCHES AND THE 4TH AMENDMENT : A FOLLOW-UP ON THE 9THCIRCUIT’S DECISION
Following the release of our Client Alert Memo regarding the Ninth Circuit’s recent decision inU.S. v. Crawford, we received a number of inquiries as to the legal impact of the decision upon current California law which authorizes suspicionless searches of parolees. Our position remains the same, the Ninth Circuit’s decision is binding, unless and until legal action reverses or stays the decision.
On March 20, 2003, the California Attorney General’s office issued a bulletin which states, “…officers conducting a parole search of a parolee’s residence absent reasonable suspicion or consent could possibly be vulnerable to civil action under 42 U.S.C. § 1983.” The bulletin continues: “If the Ninth Circuit determines that the Crawford decision placed California officers on notice that warrantless residential searches were “unconstitutional,” officers would no longer be able to assert qualified immunity for their actions after the Crawford decision becomes final.”
In our opinion, California officers have in fact been placed on notice of the unconstitutionality of such searches, thereby eliminating the qualified immunity defense as to this matter.
We have received reports that some prosecutors are advising law enforcement agencies to disregard the Ninth Circuit’s decision in light of the California Supreme Court’s authorization of such searches. The likely success of a criminal prosecution, however, cannot distract from the potential liability associated with a civil rights lawsuit brought against an officer and/or the department.
We understand that efforts are underway to challenge the decision of the Ninth Circuit, however, unless and until the decision is stayed or overturned, we are of the opinion it is binding on California law enforcement.
As always, we urge that you confer with your department’s legal advisor before taking action regarding legal matters. Should you have any questions or wish to discuss this matter in greater detail, please feel free to call Martin Mayer or Dean Pucci at 714-446-1400 or at mjm@jones-mayer.com or djp@jones-mayer.com.
[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]
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